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The Jurisprudence of Mediation

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The Jurisprudence of Mediation Chapter 10 The Jurisprudence of Mediation Julian Sidoli Abstract This chapter provides a theoretical account of mediation - a process of dispute resolution that has grown significantly over the past 50 years. It argues that there are three central theoretical models – the pragmatic, the transformative and the narrative, with all other models being ultimately iterations of the latter. The chapter then discusses what various theorists argue are the fundamental features or qualities of mediation. These features include privacy and informality. The chapter concludes by arguing that, in fact, only voluntariness and autonomy, bottom-up justice, and plurality are central to a true jurisprudence of mediation. 1. Introduction The last 50 years can be seen as telling a story of the slow but steady growth of alternative dispute resolution. The birth and subsequent growth of mediation takes place over similar timescale both intellectually and in practice.1 It grew from the mid 1960s onwards through a series of statutes establishing conciliation schemes operating in the industrial and employment sectors.2 This was followed by the Trade Union and Labour Relations Act 1974 which a year later set up what became known as Advisory, Conciliation and Arbitration Service (ACAS). Conciliation was, and remains for ACAS, what the rest of the legal and dispute resolution world usually calls mediation. A process where a neutral third party facilitates the reaching of a voluntary agreement or settlement between the parties. What follows is a not a history of mediation (there are many useful historical overviews)3 but rather a detailed account of the jurisprudence of mediation. This is not a straightforward task. Mediation has drawn widely from many disciplines.4 Despite this intellectual borrowing, or perhaps because of it, there remain relatively few, if any, clear and consistent foundational theories with regards to mediation. Indeed, mapping the conceptual ground of mediation appears to be very much a work in progress as there appears to be no agreed schema. For 1 The ‘father’ of mediation, Lon L Fuller’s seminal book The Concept of Law was published in its final, revised edition in 1969, his ‘Mediation – Its Forms and Functions’ (1979) 44 Southern California Law Review, 305 followed in 1973. 2 For example, the Redundancy Payments Act 1965 and the Industrial Relations Act 1971. 3 For example, see Marian Liebmann, (ed) Mediation in Context (London, Jessica Kingsley Publishers, 2000). 4 Carrie Menkel-Meadow, ‘Mothers and Father of Invention: The Intellectual Founders of ADR’ [2000] 16, 1 Ohio State Journal on Dispute Resolution 1. 150 example, Menkel-Meadow5 derives eight models of mediation from existing literature whilst Boulle6 recognises four models and Alexander describes six ‘meta-models’.7 This chapter will not attempt a complete literature review of works claiming to offer theoretical insight into mediation. Partly because this is an unwieldy task but also because a survey will leave as many questions unanswered as answered. Rather this chapter will attempt to evaluate the principal strands and themes in order to arrive at what is argued to be foundational in mediation theory: identifying what separates it conceptually from both litigation and other forms of adjudicative alternative dispute resolution (ADR) such as arbitration or statutory adjudication.8 It will be argued that there are three key theoretical models – the pragmatic, the transformative and the narrative. The chapter will further argue that other so- called models – like the therapeutic – are more properly classified as versions of one of the former. All three predominant models appear to share a number of key features – the privacy of the process, the informality of the process, voluntariness, the bottom-up nature of justice and finally an appeal to a form of pluralism. The chapter will argue that only the latter three aspects – voluntariness and autonomy, bottom-up justice and plurality – are necessary features of all models of mediation. Although voluntariness matters only in the more limited sense of compulsion within mediation as opposed to compulsion to mediate.9 These key aspects of mediation echo many of the cultural and intellectual changes of the past 50 years. This chapter will begin by outlining the claims of Fuller who considered mediation to be a particular form of social ordering ideally suited to polycentric disputes. It will then provide an account of the three models of mediation – the pragmatic, the transformative and the narrative. Following this, analysis partly drawn from Alberstein,10 will seek to argue that, quite apart from any wider cultural or intellectual trends, mediation theory has not developed in a vacuum but can be clearly located within the wider contours of litigation and dispute resolution. Having established that mediation - irrespective of model - sits intellectually in a relationship with formal law, the chapter will consider four questions in relation to each of the three models. The first of the four questions focuses on the privacy of mediation. This is often assumed to be fundamental to mediation, but it will be argued that this is not a necessary feature of it. This will lead to the second question of whether or not mediation is necessarily informal. It will be argued that informality is not a core feature of mediation at a theoretical level. The third question will consider the need for voluntariness and autonomy for the actual parties to the dispute. Fourthly, the concept of justice in mediation will be considered. It will be argued that mediation appeals to a ‘bottom up’ justice or a horizontal (as opposed to a vertical) approach and that questions of its privacy and informality will be considered but it will be argued that neither of those are unique to mediation or essential to the theory as opposed to the practice of mediation. This leads to a discussion of the plurality that I argue underpins mediation and which sits very comfortably in the diversity of contemporary United Kingdom. This chapter will argue that mediation appeals to an alternative account of justice and ultimately mediation appeals to a pluralistic paradigm, both descriptively and normatively. The degree of pluralism can vary between accounts. Pluralism in mediation embraces - especially in its more evaluative form – not just a recognition of overt legal rights but also of other 5 Carrie Menkel-Meadow, ‘The Many Ways of Mediation: The Transformation of Traditions, Ideologies, Paradigms, and Practices’ [1995] The Negotiation Journal, 217, 228-230. 6 Laurence Boulle, Mediation: Principles, Process, Practice (2nd edn, London, Lexis Nexis Butterworths, 2005). 7 Nadja Alexander, ‘The Mediation Meta-Model: Understanding Practice’ [2008] 26, 1, Conflict Resolution Quarterly, 97. 8 For example, construction adjudication under the Housing Grants, Construction and Regeneration Act 1996 or deposit protection adjudication under the Housing Act 2004, ss212-215 as amended by the Localism Act 2011, s184. 9 See also Julian Sidoli del Ceno ‘The Problem of Compulsory Mediation: Civil Justice, Human Rights and Proportionality’ (2014) 6, 3, International Journal of Law in the Built Environment, 286. 10 Michal Alberstein, (2009) Forms of Mediation and Law: A Jurisprudence of Mediation, ExpressO, http://works.bepress.com/michal_alberstein/1 (accessed 16 December 2020). 151 conceptions of justice and views of ‘the good’ is a strength and not a weakness. Finally, it will be argued that the final core element of mediation is based around the argument that litigation is harmful generally to most parties and that mediation seeks to limit this - and that whilst talk of positive experiences of conflict might be flights of fancy – there is a genuine attempt at preserving relationships and, in some sense, healing. 2. Social Ordering and Litigation Fuller in many important papers during the course of the latter half of the twentieth century outlined an account of how functioning society ought to be governed, or perhaps more appropriately ordered for there is no necessity for ‘ordering’ always to be ‘top-down’ or pyramidal. This project that he called ‘eunomics’ (literally ‘good order’ frequently referred to by Summers and others as the ‘principles of social order’)11 did not develop in a systematic way and was left incomplete at his death in 1978. Winston gathered these elements of Fuller’s work - which have received less critical attention than his more overtly jurisprudential work - together for a wider readership12. The basic argument running through this project is that there are many ways in which we can and do order society and human interactions. Adjudication is one of them but only one of them along with managerial direction, contract, legislation, and mediation. Adjudication is appropriate in many arenas but has its limits. Most notably, Fuller considered adjudication to be poorly suited to polycentric disputes13 and coordinating collective activities. Fuller borrowing the term ‘polycentric’ from Polanyi14 used it to describe disputes with not only multiple parties - that the courts clearly can and do deal with (the ‘class action’ in the US context for example) - but disputes with a wide variety of participants. Participants (or stakeholders) are those with an interest in the dispute not necessarily a legal interest or right and who tend to represent numerous different perspectives, values, and interests.15 The question of polycentrism is a complex one16 and not fundamental for
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